Tuesday, 9 February 2016

Medical professionals are rarely negligent. Often a patient who suffers an unexpectedly poor outcome from treatment by medical professionals will have no direct evidence about what occurred to cause that result. Statistically it is unlikely that the result was caused by negligence.

A submissions often made on behalf of defendants to clinical negligence actions is that the alleged negligence is so inherently unlikely that it can be rejected. The alleged negligence, so goes the submission, can be rejected as having been inherently improbable.

The Claimant contended that during the course of an operation to repair a direct inguinal hernia the surgeon failed to identify and repair an indirect inguinal hernia. The surgery was performed by a Mr El-Hasani. The Claimant was reviewed post-operatively by a nurse, Ms Starlene Grandy-Smith. This was by any standards a low value clinical negligence claim, but it reached trial in the High Court where evidence was heard over two days in January 2016.

He later commented on his favourable impression of the surgeon and his impressive record of successfully performing such surgery.

Of course in the interests of promoting a modern legal system fit for the 21st century one must condemn the use of the Latin phrase "stricto sensu" when "in the strict sense" or would have conveyed the same meaning.

The Learned Judge became almost poetic when describing the judicial role when assessing the evidence of fact:

So, the claim was defeated (total damages and interest would have been only £10,500) but the passage at [66] might usefully be borne in mind whenever the "inherent improbability" submission is deployed.

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Learned Friend is the blog of Nigel Poole QC. Nigel practises at Kings Chambers with offices in Manchester, Birmingham and Leeds. He specialises in clinical negligence and personal injury law. These posts are intended to be of general interest and no-one should rely on them as definitive statements of the law. They are no substitute for full advice in any particular case. I would welcome comments on the posts and suggestions for future topics.
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